In light of the recent shootings at the Washington Navy Yard, mental health is once again the topic of conversation in the media. And, it should be. The statistics are staggering. According to the National Institutes of Mental Health (NIMH), 6.7% of the U.S adult population suffers from depression. That translates into almost 20 million people. Of those cases, 30.4% of these cases are severe. Depression is the number one cause of disability in the world.

With those numbers, there is no question that as an HR Manager, you will have to understand the legalities around dealing with depression in the workplace.

Psychiatric and/or mental disability is covered under The Americans with Disabilities Act (ADA) and it is the second most common disability claim, representing 11.7% of ADA claims. So what do you need to know?

Definition of a Disability

In 2009, Congress toughened the ADA by easing restrictions on the number of people who could file a claim making it more difficult to exclude people from filing.

According to the ADA, disability is defined as a physical or mental impairment that substantially limits one or more major life activities. A physical impairment is a physiological condition, cosmetic disfigurement, or anatomical loss that affects one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.

A mental impairment is a mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

While the medical definition of a mental illness describes a variety of disorders that can range from mild anxiety to more serious conditions that significantly interfere with major life activities such as learning, working, and simply interacting with others, the legal definition is more ambiguous, so you have to mindful, and may wish to err on the side of caution.

As an employer, you are obligated under the ADA to make reasonable accommodations for an employee and cannot discriminate against them because of their disability.

Do You have to Tolerate Failure to Perform?

If an employee is frequently late or has excessive absences due to depressive episodes, do you have to make accommodations? If an employee suffers loud or dramatic outbursts that frighten others in the workplace, do you have to make accommodations. The answer is probably no.

The ADA does not require you to accept an employee who is failing to perform because of the disability. Therefore, you need to focus on making accomodations for employees who have told you or HR that they are suffering from a depressive or mental disorder in a way that provides them an opportunity to continue working but NOT in a way that allows them to break rules or not perform their job.

It should be noted that if an employee does ask for a specific modification, you are absolutely within your right to ask for medical documentation that details the extent of the condition.

Make sure you provide a reasonable amount of time for them to provide the documentation.

If the employee does not have documentation or refuses to provide it, then you are not obligated to make the accommodation.

Once the condition has been verified, you then need to engage in an interactive process with the employee to make those reasonable accommodations.

Examples could include modifying their schedule, extra time off at lunch or at some other time of the day for therapy sessions, environmental modifications, i.e. providing more ambient light, putting up partitions for employees who cannot tolerate noise or distractions. You can help an employee find another available position in the company that better accommodates their illness as long as it is a comparable salary.

In Morton v. GTE North, Inc., 5 AD Cases 524 (N.D.Tex. 1996), the court held that the employer reasonably accommodated the plaintiff who suffered from severe depression. The employer directed the plaintiff to the staffing department so plaintiff could determine how to apply for a transfer, plaintiff and supervisor evaluated positions available at the time of request and did not find any position that plaintiff would accept or she could perform successfully, and plaintiff was unable to find a job she could perform. Id. at 531-532. Because there was no suitable vacant position available to her, employer did not have to grant plaintiff a transfer. Id. at 532. See also Voytek v. University of California, 5 AD Cases 1255 (N.D.Cal. 1994) (University reasonably accommodated director of department who had a depressive disorder by offering him a different position either at comparable salary as previous position or reduced responsibilities and salary).

The very nature of mental disorders make this an extremely difficult area for HR Managers and employers. The new ADA definitions are so broad most cases will fall into a protected class so you have to be prepared to deal with ongoing requests. While there are many good online resources that discuss the ADA regulations, this is one area where you may want to consult with an employment attorney or specialist if you have questions or are unsure of how to proceed.

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